In 2010, the city's former mayor, Bishop Henry Hearns, delivered an invocation that included the phrase "Bring our minds to know you and in the precious, holy and righteous and matchless name of Jesus I pray this prayer."

A three-judge panel noted that, of the 26 prayers given between the day that Lancaster passed its prayer policy and the day that Hearns gave the offending invocation, a full 20 of them were delivered by Christian preachers, all of whom used Jesus' name. That does not necessarily mean, however, that the "city itself has taken steps to affiliate itself with Christianity," according to the ruling.

"The city has instead taken every feasible precaution - short of the extra step (itself fraught with constitutional peril) of requiring volunteers to refrain altogether from referencing sectarian figures - to ensure its own evenhandedness," Judge Diarmuid O'Scannlain wrote for the panel (parentheses in original).

The U.S. Supreme Court has consistently held that "when a neutral government policy or program merely allows or enables private religious acts, those acts do not necessarily bear the state's imprimatur," he added.

The 9th Circuit Court of Appeals today upheld the constitutionality of Lancaster, California's City Council prayer policy against charges that it violates the separation of church and state. In so doing, the 9th Circuit seems to have taken a different approach than the 4th Circuit, which recently held unconstitutional a policy that resulted in consistently sectarian Christian prayer to open meetings of North Carolina's Forsyth County Commissioners, citing the Supreme Court's decisions in Marsh and Allegheny.

Here, the court emphasized that because Lancaster's policy takes great pains to avoid favoritism in determining who will give the prayer, the fact that the policy does not require nonsectarian invocations is unconcerning.

[S]o long as legislative prayer—whether sectarian or not—does not proselytize, advance, or disparage one religion (Marsh’s language) or affiliate government with a particular faith (Allegheny’s reiteration), it withstands scrutiny. Marsh. . . . For these reasons, we join several of our sister circuits in concluding that neither Marsh nor Allegheny categorically forbids sectarian references in legislative prayer.
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Indeed, if “what matters under Marsh is whether the prayer to be offered fits within the genre of legislative invocational prayer that has become part of the fabric of our society,” then surely, as a general matter, sectarian and nonsectarian legislative prayer stand on equal footing.

. . . Despite the differences in factual context, these 2 approaches between the 4th and 9th Circuits seem at odds. Will this impact how future courts determine legislative prayer disputes? Or whether the Supreme Court decides to further clarify the law in this area?